Case 3:17-cv-05668-RBL Document 58 Filed 07/31/18 Page 1 of 11

1 HONORABLE RONALD B. LEIGHTON

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6 UNITED STATES DISTRICT COURT

7 WESTERN DISTRICT OF WASHINGTON AT TACOMA 8

9 CHINOOK INDIAN NATION, et at., CASE NO. C17-5668 RBL 10 Plaintiffs, FED.R.CIV.PROC. 24(a) MOTION TO INTERVENE 11 v. OF RIGHT BY CONFEDERATED TRIBES OF 12 RYAN K. ZINKE, et al., SILETZ INDIANS OF OREGON; OR IN THE ALTERNATIVE FED.R.CIV.PROC. 24(b) MOTION Defendants. 13 FOR PERMISSIVE INTERVENTION

14 NOTE ON MOTION CALENDAR: August 24, 2018 ORAL ARGUMENT REQUESTED 15

16 Comes now the Confederated Tribes of Siletz Indians of Oregon (“Siletz Tribe”), by and 17

18 through undersigned counsel, and moves this Court to intervene in the above-entitled proceeding

19 by right pursuant to Fed.R.Civ.Proc. 24(a), or in the alternative to grant the Siletz Tribe

20 permissive intervention pursuant to Fed.R.Civ.Proc. 24(b). The Siletz Tribe seeks intervention in

21 this proceeding only as to Plaintiffs’ 6th, 7th, and 8th Claims for Relief, in which “Plaintiffs seek a 22 declaratory judgment from the Court recognizing their right to funds from the ICC judgement1 23 presently held in trust by the DOI. Id. at ¶¶ 192 – 202.” Order on Motion to Dismiss, Dkt. # 45, 24

25 1 This is a reference to Indian Claims Commission Docket No. 234, The Chinook Tribe and 26 Bands of Indians v. United States, 6 Ind.Cl.Comm. 177, 208, 229-a (1958); 24 Ind.Cl.Comm. 56, 64, 88 (1970). DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 1 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 June 20, 2018, p. 11. The Siletz Tribe does not seek intervention regarding the other remaining

2 claims of Plaintiffs. Grounds for this motion are set out below. This motion is supported by the

3 Declaration of Angela Ramirez, which is attached to this motion and incorporated herein by 4 reference. A proposed order is also submitted. 5 Argument 6 The group identifying itself as the Chinook Indian Nation (“Plaintiff”),2 alleged successor 7 in interest to several historical bands and tribes of Indians including the Lower Band of Chinook 8

9 Indians and the Clatsop Indian Tribe, Dkt. # 24, ¶6, pp. 3-4, brought the present action raising

10 several claims for relief. Plaintiff made three basic claims: 1. It requested a judicial

11 determination to add its name to the list of federally-recognized Indian tribes maintained by the

12 Department of Interior, See Order on Motion to Dismiss, Dkt. #45, p. 1; 2. it claimed that BIA 13 regulations prohibiting a group from re-petitioning for federal recognition if it previously had 14 submitted an unsuccessful violated its due process rights; and 3. it claimed that it is entitled to 15 access to funds from a 1970 Indian Claims Commission (ICC) judgment currently held in trust 16 by the Department of Interior (DOI) for the Lower Band of Chinook and Clatsop Indians. Id. 17

18 On June 20, 2018, this Court dismissed Plaintiff’s claims for judicial federal recognition.

19 Dkt. #45, Order on Motion to Dismiss. It retained jurisdiction over Plaintiff’s prohibition on re-

20 petitioning claims. Most importantly from the Siletz Tribe’s perspective, the Court also ruled that

21 it has subject matter jurisdiction over Plaintiff’s claim regarding entitlement to the Lower Band 22 of Chinook and Clatsop ICC funds. Order, p. 24 (“The Court has subject matter jurisdiction over 23 Plaintiffs’ claims related to funds held in trust for the Lower Band of Chinook and Clatsop 24

25 2 The Siletz Tribe understands that there are additional plaintiffs named in the Complaint, namely Anthony A. Johnson, Chairman of the Chinook Indian Nation, and an entity entitled the 26 Confederated Lower Chinook Tribes and Bands, a state non-profit corporation. The Siletz Tribe includes all three named plaintiffs under the term “Plaintiff” in its motion and in this brief. DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 2 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 Indians.”); p. 26 (“Plaintiffs articulate a plausible claim that Defendants have forfeited funds

2 from the ICC judgment to which Plaintiffs have a valid property interest.”).

3 The Siletz Tribe does not seek intervention on Plaintiff’s first two categories of claims, 4 regarding federal recognition. The Ninth Circuit Court of Appeals has been clear that federal 5 recognition is between the petitioning group and the United States and has denied other tribe’s 6 applications to intervene in a federal acknowledgment proceeding. Greene v, United States, 996 7 F.2d 973 (9th Cir. 1993); Greene v. Babbitt, 64 F.3d 1266, 1271 (9th Cir. 1995); Evans v. Dept. of 8 th 9 Interior, 604 F.3d 1120, 1122-24 (9 Cir. 2010). The Siletz Tribe takes no position regarding

3 10 Plaintiff’s claims to federal recognition.

11 The Siletz Tribe does, however, seek to intervene in this proceeding regarding Plaintiff’s

12 third category of claims – claimed entitlement to the proceeds from the ICC judgment in favor of 13 the Lower Band of Chinook Indians and Clatsop Tribe of Indians. The Siletz Tribe’s 14 justification for this request is that it is a successor in interest to the historical Lower Band of 15 Chinook Indians and the Clatsop Indian Tribe that were the subject of the ICC cases in question 16 and on whose behalf a judgment was awarded therein, and the Siletz Tribe has many enrolled 17 4 18 tribal members who are descendants of these historical tribes.

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20 3 The Siletz Tribe notes, however, that while existing precedent does not support one tribe intervening in the federal acknowledgment effort of another tribe, that Plaintiff’s quest for 21 federal acknowledgment raises some complicated questions that are not capable of easy answers. For example, Plaintiff claims successorship to Indian tribes and bands located in both Oregon 22 and Washington. Each State raises different legal issues. All tribes and bands of Indians in 23 western Oregon were terminated by the Western Oregon Indians Termination Act, 25 U.S.C. §691 et seq. The tribes and bands of Indians in Washington that Plaintiff claims an association 24 with were never officially recognized or remain unrecognized. Different legal consequences flow from these different legal statuses. 25 4 The ICC cases, Docket #234, are The Chinook Tribes and Bands of Indians v. U.S., 6 Ind. Cl.Comm. 177, 208, 229-a (1958), and 24 Ind.Cl.Comm. 56, 64, 88 (1970). In its original 26 opinion at 6 ICC 208, the Commission held: “p. 212: [I]t is important to ascertain whether this so-called tribe, organized ostensibly for the sole purpose of presenting this claim, is the successor DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 3 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 The Siletz Tribe first notes that in the context of the United States’ motion to dismiss this

2 proceeding, Plaintiff stated that there was no other group that could achieve federal recognition

3 and that could assert a claim to the judgment in Docket #234, and therefore it is the only group 4 with any legitimate claim to this money. See Order, Dkt. #45, p. 26 (Court quotes Plaintiff’s 5 position). The Court appears to have given credence to Plaintiff’s position on this issue: 6 “Defendants’ position begs the question: who could conceivably establish a connection to the 7 funds held in trust that is not also banned from re-petitioning for acknowledgment.” Id. 8

9 Apparently, none of the current parties in this case raised an alternative possibility with

10 the Court as to who might be entitled to part or all of this ICC judgment award; there may

11 already be federally recognized tribes with an interest in this ICC Judgment. The Siletz Tribe is a

12 federally-recognized Indian tribe5 with members who are descendants of the Lower Band of 13 Chinook Tribe of Indians and Clatsop Indian Tribe that are entitled to part or all of the Docket 14 #234 judgment funds. Based on information and belief, there are a number of other currently 15 federally- recognized tribes that also have a significant numbers of members who are 16 descendants of these tribes. Those tribes can speak for themselves and assert their own interests 17

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20 in interest to [various tribes] . . . or is entitled to bring this action or and on behalf of said Indians. The record in this case is far from satisfactory.”; p. 226: “[T]he record is far from 21 satisfactory with respect to the right of petitioner herein to maintain a cause of action for the various bands, tribes or groups it claims to represent.”; p. 228: “In view of the above and the 22 previously mentioned testimony concerning the composition of membership in petitioner 23 organization there exists grave doubts as to the capacity of petitioner to present the claims of all of the tribes or bands petitioner contends it represents herein. Because of the necessity of 24 liberally analyzing the pleadings and the record with respect to capacity, (citation omitted) the right of petitioner to present the claims of the Chinook (proper) and Clatsop Tribes on behalf of 25 the descendants of said tribes is recognized. . . . The Commission therefore concludes that petitioner has the capacity to prosecute this action for and on behalf of the Clatsop and Chinook 26 (proper) Indians.” 5 See 83 Fed.Reg. 34863, 34864 (July 23, 2018) (annual BIA list of federally-recognized tribes). DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 4 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 should they choose to do so, but the Siletz Tribe hereby asserts its interests in this judgment fund

2 on behalf of its tribal member descendants of these two tribes.

3 The following two facts establish the prima facie interest of the Siletz Tribe and its 4 members in this judgment fund. First is the Siletz Tribe’s Geographic Areas of Tribal Interest 5 Ordinance, Siletz Tribal Code (STC) §7.200 et seq., enacted in 1999. Ordinance attached as 6 Exhibit 1 to this Memorandum and incorporated herein by reference. The Ordinance is available 7 on the Siletz Tribe’s website at 8

9 www.ctsi.nsn.us/uploads/downloads/Ordinances/Geographic%20Areas%20of%20Tribal%20Inte

10 rest%2009-16-05.pdf. The Siletz Tribe is a confederation of various tribes and bands of Indians

11 from throughout western Oregon who were all removed by the federal government and settled on

12 the 1855 Siletz Coast Reservation, established by Executive Order on November 8, 1855 and 13 originally comprising over 1.1 million acres. See Charles Wilkinson, The People Are Dancing 14 Again: The History of the Siletz Tribe of Western Oregon (U. of Washington Press 2010). 15 Because of the Siletz Tribe’s complicated legal history,6 the Siletz Tribe made the policy choice 16 to set out in tribal law who it is, from whom it is derived, and what its legal interests are after a 17

18 comprehensive investigation and evaluation of the Tribe’s history. At Section 7.203, the Siletz

19 Tribe set out the 28 or so tribes, bands and sub-groups who comprise the modern day

20 confederated Siletz Tribe, including at subsection (b)(2), the “Chinook (including Upper and

21 Lower Chinook, and Clatsop).” Subsection (c) of this Section states specifically that the Siletz 22 Tribe is a legal successor in interest to the listed tribes, including Lower Chinook and Clatsop. 23

24 6 The Siletz Tribe was an unrecognized Indian tribe for 23 years between 1954 and 1977. The 25 Siletz Tribe was terminated in 1954 along with over 50 other tribes in the Western Oregon Indians Termination Act. 25 U.S.C. §691 et seq., along with all the constituent bands and tribes 26 in the Siletz Confederation, including the “Chinook” and “Clatsop” tribes. The Siletz Tribe was restored to federal recognition in 1977 by the Siletz Restoration Act, 25 U.S.C. §711 et seq. DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 5 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 The second prima facie fact in support of the Siletz Tribe’s interest in this claim for relief

2 is the Declaration of the Siletz Tribe’s Enrollment Clerk, Angela Ramirez, attached to this

3 memorandum as Exhibit 2 and incorporated herein by reference. The Siletz Tribe’s Enrollment 4 Ordinance, STC §2.300 et seq., requires as part of the application for enrollment process that the 5 applicant include information about which ancestral bands and tribes of Indians they are 6 descended from. STC §2.304(a)(4). The Siletz Tribe’s Enrollment Ordinance can be found at 7 www.ctsi.nsn.us/uploads/downloads/Ordinances/Enrollment%20ordinance%2006-17-16.pdf. 8

9 The Enrollment staff then investigates the information provided as part of the application and

10 forwards a recommendation for or against enrollment to the Tribe’s Enrollment Committee,

11 including information regarding the ancestral bands and tribes of Indians the applicant is

12 descended from. STC §2.304(c). 13 As a result of this requirement, the Siletz Tribe has well developed information regarding 14 the historical tribes and bands of Indians its members are descended from. As the attached 15 declaration of Siletz Enrollment Clerk Angela Ramirez states, the current information is that of 16 the Tribe’s approximately 5,000 current members, 1106 are descended from the historical 17 7 18 Chinook Tribe and 421 are descended from the historical Clatsop Tribe. Since the Lower

19 Chinook and Clatsop ICC case was brought on behalf of the descendants of those two tribes, see

20 n. 2 supra, the fact that the Siletz Tribe has a significant number of such descendants as members

21 establishes as a prima facie matter that the Siletz Tribe and its descendant members have a legal 22

7 23 Interestingly, Plaintiff is not the only unrecognized group purporting to represent the Chinook and Clatsop Tribes. In 2014, a group purporting to be the Clatsop-Nehalem Confederated Tribes 24 of Oregon introduced federal legislation to “restore” their existence as a federally-recognized tribe. See HR 5215, 113th Cong., 2d Sess., HR 5215, introduced July 25, 2014 by Representative 25 Bonamici of Oregon. HR 5215 attached to this memorandum as Exhibit 3 and incorporated herein by reference. The leader of this group was recently enrolled as a test case as a member of 26 the Siletz Tribe, mooting out the group’s efforts to achieve separate federal recognition. The legislation has not been reintroduced. DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 6 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 interest in any claim for distribution of the judgment funds from Docket #234 held in trust by the

2 United States.

3 Other facts clearly require additional development and investigation. Based on 4 information and belief, some of the Siletz Tribe’s descendant members were involved in the ICC 5 proceeding referenced in Plaintiff’s Complaint, and there are a number of Siletz member 6 descendants listed on the various rolls such as the 1914 McChesney distribution roll and the 7 Roblin Roll that Plaintiff derives its membership from. The Siletz Tribe believes that a number 8

9 of the members of Plaintiff’s group could qualify for membership in the Siletz Tribe assuming

10 they meet blood quantum and documentation requirements. The claims of Plaintiff and the Siletz

11 Tribe to the descendants who appear on these and other lists will need to be more fully explored.

12 The claim of Plaintiff to be the sole successor in interest to the historical Lower Chinook and 13 Clatsop Tribes needs to be more closely examined, especially in light of the Siletz Tribe’s long- 14 established claim to such status. Intervention as of right is the only way that the Siletz Tribe can 15 protect the interests of its Chinook and Clatsop descendant members in the Docket #234 16 judgment fund against the conflicting claims of Plaintiff in the present proceeding. No other 17

18 party to this proceeding is protecting that interest.

19 The Siletz Tribe makes one final note about Plaintiff’s claim of a protected property

20 interest in the ICC Docket #234 judgment fund, especially as against other affiliated descendants

21 such as Siletz tribal members. The Siletz Tribe does not know what arguments were made by 22 Plaintiff and Defendant on this specific issue, but the relevant law is very clear. In LeBeau v. 23 United States, 474 F.3d 1334, 1342-43 (Fed. Cir. 2007), the Federal Circuit Court of Appeals 24 addressed the right of lineal descendants to a Claims Court judgment fund that had been 25 appropriated by Congress but not yet distributed. For example: “Plaintiffs are not entitled to a 26

DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 7 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 recovery for damages for this breach (not distributing the fund to the descendants before

2 Congress changed the allocation to reduce the descendants’ share of the judgment fund) because

3 Congress, acting within its proper authority before any distribution to the lineal descendants had 4 occurred, reallocated the lineal descendants’ share of the Judgment Fund. . . . Until the 5 distribution to the lineal descendants occurred, however, Congress had the authority to alter the 6 lineal descendants’ portion of the Judgment Fund, thereby reducing the sum of money that each 7 lineal descendant would receive. . . . the [original congressional act appropriating funds to pay 8

9 the judgment and allocating a portion of that fund to descendants not affiliated with any

10 recognized tribe] did not confer any vested right such as would disable Congress from thereafter

11 making [a different] provision . . . .”8

12 The Federal Circuit based its ruling on this issue on three separate United States Supreme 13 Court decisions that reached the same holding: Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 14 73, 90 (1977); United States v. Jim, 409 U.S. 80, 82-83 (1972), and Gritts v. Fisher, 224 U.S. 15 640, 648 (1912). See also Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 653-56 (1976). 16 Plaintiff’s claim to have a vested property interest in the Docket #234 Judgment Fund before it 17

18 has been distributed is therefore suspect in the Siletz Tribe’s opinion. In any event, all

19 descendants of the historical Lower Chinook Band and the Clatsop Indian Tribe have an interest

20 in the distribution of those funds, including the many descendant members of the Siletz Tribe.

21 Plaintiff does not have sole or exclusive interest in that judgment. 22

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24 8 There were a number of earlier court decisions involved in the LeBeau case. Loudner v. United 25 States, 905 F.Supp. 747 (D.S.D. 1995); Loudner v. United States, 108 F.3d 896 (8th Cir. 1997); Le Beau v. United States, 115 F.Supp.2d 1172 (D.S.D. 2000); LeBeau v. United States, 171 26 F.Supp.2d 1009 (D.S.D. 2001); LeBeau v. United States, 215 F.Supp.2d 1046 (D.S.D. 2002); and LeBeau v. United States, 334 F.Supp.2d 1200 (D.S.D. 2004). DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 8 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 Based on the foregoing discussion, the Siletz Tribe’s motion to intervene as a matter of

2 right pursuant to Fed. R. Civ. Proc. 24(a) should be granted. In the alternative, the Siletz Tribe

3 should be allowed to intervene as a permissive matter pursuant to Fed.R.Civ.Proc. 24(b) to 4 protect the rights of its descendant members to this Judgment Fund. 5 DATED this 31st day of July 2018. 6

7 DORSAY & EASTON LLP

8 9 /s/ Craig J. Dorsay Craig J. Dorsay, WSB# 9245 10 [email protected]

11 /s/ Lea Ann Easton Lea Ann Easton, WSB# 38685 12 [email protected]

13 Attorneys for the Siletz Tribe 14 1737 NE Alberta St, Suite 208 Portland, OR 97211 15 Telephone: 503-790-9060

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DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 9 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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1 CERTIFICATE OF SERVICE

2 I hereby certify that on July 31, 2018, I electronically filed the foregoing with the Clerk

3 of the Court using the CM/ECF system which will send notification of such filing to the persons 4 required to be served in this proceeding. 5 Dated this 31st day of July 2018. 6

7 By: s/ Craig J. Dorsay Craig J. Dorsay, WSBA # 9245 8 9

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DORSAY & EASTON MOTION TO INTERVENE BY CONFEDERATED TRIBES OF 1737 NE Alberta St, Suite 208 SILETZ INDIANS OF OREGON - 10 (Case No. C17-5668 RBL) Portland, OR 97211 503-790-9060

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HONORABLE RONALD B. LEIGHTON 1

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5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT TACOMA

7 CHINOOK INDIAN NATION, et at., CASE NO. C17-5668 RBL 8 Plaintiffs, [PROPOSED] ORDER GRANTING 9 v. CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON MOTION TO 10 RYAN K. ZINKE, et al., INTERVENE

11 Defendants. Note on Motion Calendar: August 24, 2018 12

13 This matter comes before the Court on the Confederated Tribes of Siletz Indians of 14 Oregon Motion to Intervene. The Court has reviewed the submissions of the parties, and heard 15 oral argument and finds that the Siletz Tribe’s Motion to Intervene should be GRANTED. 16

17 ORDERED this ____ day of ______, 2018.

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19 Ronald B. Leighton United States District Judge 20 21 Presented by:

22 DORSAY & EASTON LLP

23 /s/ Craig J. Dorsay Craig J. Dorsay, WSB# 9245 24 /s/ Lea Ann Easton 25 Lea Ann Easton, WSBA# 38685 Attorneys for the Confederated Tribes of Siletz Indians of Oregon 26

[PROPOSED] ORDER GRANTING SILETZ TRIBE’S MOTION DORSAY & EASTON TO INTERVENE - Page 1 1737 NE Alberta St, Suite 208 (Case No. C17-5668RBL) Portland, OR 97211 503-790-9060